United States v. Fernando Perez , 669 F. App'x 196 ( 2016 )

Case: 15-11165 Document: 00513687426 Page: 1 Date Filed: 09/21/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-11165 FILED
Summary Calendar September 21, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FERNANDO PEREZ, also known as Fernando Perez-Reynoso,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-129-2
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Fernando Perez challenges his sentence to the statutory maximum of
240 months of imprisonment for conspiracy to possess with intent to distribute
methamphetamine. The presentence report (PSR) calculated a guidelines
range of 210 to 240 months, based in part on a two-level enhancement, under
U.S.S.G. § 2D1.1(b)(1), for possessing a firearm during his participation in the
conspiracy and a three-level reduction, under U.S.S.G. § 3E1.1, for acceptance
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-11165 Document: 00513687426 Page: 2 Date Filed: 09/21/2016
No. 15-11165
of responsibility. Before the district court, Perez objected to the § 2D1.1
firearm enhancement. The court overruled the objection and found that
Perez’s objection constituted a false denial of relevant facts that supported the
enhancement. The district court therefore declined to grant Perez a § 3E1.1
reduction for acceptance of responsibility, leading to a guidelines sentence of
240 months. On appeal, Perez argues: (1) the court denial of a § 3E1.1
reduction was without foundation; and (2) the district court violated 18 U.S.C.
§ 3553(a)(4) by failing to consider the guidelines range that would have been
applicable with the reduction. Because Perez did not object to his sentence
below, we review the district court’s decision for plain error only. See Puckett
v. United States, 556 U.S. 129, 135 (2009).
As to the district court’s denial of the § 3E1.1 reduction, Perez contends
that the court erred in construing his objection to the § 2D1.1(b)(1)
enhancement as a false denial of additional relevant conduct for which he was
accountable, see § 3E1.1, comment. (n. 1(A)), rather than as a permissible
challenge to the legal significance of the admitted conduct, see United States v.
Patino-Cardenas, 85 F.3d 1133, 1136 (5th Cir. 1996); United States v. Fells, 78
F.3d 168, 171-72 (5th Cir. 1996). We disagree. Although Perez argued that
the facts did not support the legal conclusion that he had the required
relationship to the relevant firearm, he also disputed some of the underlying
facts that supported the enhancement. The district court’s finding that Perez
had failed to truthfully admit the full extent of his relevant conduct was
therefore not without foundation. See United States v. Preciado-Delacruz, 801
F.3d 508, 511 (5th Cir. 2015). Accordingly, the district court committed no
reversible error in denying the § 3E1.1 reduction.
As to Perez’s argument that the district court failed to consider the
guidelines range that would have applied had it granted the reduction, he cites
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No. 15-11165
no authority for the proposition that a sentencing court must “consider” a
guidelines range that it determines is inapplicable. Section 3553(a)(4) only
requires the court to consider “the sentence range established . . . as set forth
in the guidelines” (emphasis added), i.e., the applicable guidelines range. It is
undisputed that the district court considered the applicable guidelines
sentence of 240 months before imposing that sentence upon Perez.
Accordingly, the district court’s sentence is AFFIRMED.
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